Ripley v. Chater ( 1995 )

United States Court of Appeals,
Fifth Circuit.
No. 94-11099
Summary Calendar.
Travis RIPLEY, Plaintiff-Appellant,
v.
Shirley S. CHATER, Commissioner of Social Security, Defendant-
Appellee.
Oct. 30, 1995.
Appeal from the United States District Court for the Northern
District of Texas.
Before WISDOM, JOLLY and JONES, Circuit Judges.
WISDOM, Circuit Judge.
Travis Ripley appeals from the district court's grant of
summary judgment which upheld the Secretary's denial of Social
Security disability benefits. Because there is new, material
evidence relating to Ripley's disability claim and the decision of
the administrative law judge is not supported by substantial
evidence, we reverse and remand to the district court with
instructions that this case be sent back to the administrative
level for additional proceedings.
I.
A. Procedural History
Travis Ripley, the appellant, has been complaining of back
pain since 1988. On December 6, 1991, Ripley filed an application
for Title II Social Security disability benefits for a period
1
beginning on July 1, 1988.1 The state agency and the Social
Security Administration denied his application and his request for
reconsideration. On November 5, 1992, a hearing was held, at
Ripley's request, before an administrative law judge (ALJ). On
December 16, 1992, the ALJ found that Ripley was not disabled.
After the Appeal's Council refused his request for review, Ripley
filed a complaint seeking review of the ALJ's decision in the
United States District Court for the Northern District of Texas
under 42 U.S.C. § 405(g). On September 13, 1994, after reviewing
the magistrate's recommendation, the district court granted summary
judgment in favor of the Commissioner, upholding the denial of
disability benefits. Ripley appeals.
B. Factual/Medical History
Travis Ripley injured his back while building a shed.2 After
the injury, Ripley began making frequent trips to the Olin E.
Teague VA Medical Center complaining of back pain which radiated
down his right leg and numbness in the sole of his right foot. The
pain allegedly increased with sitting or standing.3 The results of
a CT scan revealed that Ripley had a herniated L5-S1 disc with
compression of the right S1 nerve root. On September 30, 1988, Dr.
1
According to the record, Ripley's eligibility for Title II
disabilities benefits ended on December 31, 1992.
2
Before this injury, Travis Ripley was employed as a
telephone installer/repairman, a job requiring bending, lifting,
and carrying heavy objects. Since the accident, Ripley has not
returned to work.
3
The report noted that Ripley had been unable to sit due to
the pain.
2
Kirby Hitt, an orthopedic surgeon, performed a partial
hemilaminectomy and a discectomy at L5-S1, with a partial right
medial facetectomy on Ripley. At the time of his discharge, Ripley
was able to move freely, but he reported numbness over his right
fifth toe.
Ripley returned to the VA clinic on many occasions after his
surgery. Initial reports indicated that his condition was
improving. But later, Ripley complained about the pain and
numbness returning. The medications and physical therapy were not
relieving his symptoms. On April 23, 1990, Dr. Clark took x-rays
of Ripley's back which revealed that "the lumbosacral disc space is
questionably narrowed today whereas it appeared normal previously"
and that there were signs of "questionable degenerative disc
disease at the lumbosacral level". On May 31, 1990, X-rays showed
a mild retrolisthesis at L5 on S1, but were otherwise negative. On
November 29, 1990, Ripley was diagnosed with chronic lower back
pain after his condition had not improved. A second CT scan, taken
on August 16, 1991, indicated, according to the record, that Ripley
had "a herniated disc centrally and to the right which encroaches
upon the fecal [sic] sac." The possibility of a second surgery was
raised.
On November 7, Ripley received caudal block injections which
relieved some of his back pain, but not all of his other symptoms.
The doctor testified concluded that Ripley was suffering from a
recurrent herniated disc, and scheduled an appointment with Ripley
to discuss the possibility of additional surgery.
3
On December 11, 1991, Ripley was sent for more physical
therapy where he was taught back strengthening exercises. X-rays
were also taken which revealed a mild narrowing of the L5-S1 disc
space, but no significant change in his condition.
On July 29, 1992, Ripley returned to the clinic complaining of
pain which resulted from sitting or standing. A myelogram revealed
a "mild anterior extradural impression on thecal sac at L4-L5
consistent with mild bulging of L4-L5 disc ... No definite
evidence of encroachment upon nerve roots at L4-L5 or L5-S1 noted".
The post-myelogram CT scan indicated that there is a small
herniated nucleus pulpous at L4-L5, but no encroachment upon the
thecal sac.
At his hearing on November 5, 1992, Ripley testified that he
is unable to do most of the work around his house because he cannot
sit or stand for more than thirty or forty minutes at a time. In
addition, he can sleep only for three to four hours a night.
Ripley also testified that he participates in limited outside
activities. He attends church on Sundays, but is unable to sit
through the entire service. He is able to drive or ride in a car,
but only for short periods of time.4 Despite his complaints, the
ALJ denied Ripley's claim for disability.
In October 1993, after the Appeals Council refused to review
Ripley's claim, MRI studies revealed that Ripley had a central and
right herniated disc at the L5-S1 which affected the L5 nerve root
4
On the way to the hearing, Ripley had to ride in the back
of a station wagon because he was unable to sit for the entire
eight-three mile trip.
4
and may have affected the S1 nerve root. On February 2, 1994,
Ripley underwent additional surgery.5 The operation revealed the
presence of significant scar tissue from the original L5-S1
discectomy on the right and scarring of the nerve root to the
lateral wall of the canal. Despite this new evidence, the district
court denied Ripley's claim by granting summary judgment in favor
of the Commissioner on September 13, 1994.
II.
On appeal, Ripley raises three issues. First, Ripley argues
that the district court erred in refusing to remand this case to
the administrative level so that new medical evidence could be
considered. Second, Ripley argues that the ALJ used an improper
legal standard in evaluating his subjective complaints of pain.
Finally, Ripley maintains that the ALJ failed to fulfill his duty
to develop the record fully and fairly in relation to Ripley's
ability to perform substantially gainful work.
Our review of the Secretary's decision is limited to
determining whether that decision is supported by substantial
evidence and whether the proper legal standards were applied.6
"Substantial evidence is such relevant evidence as a reasonable
5
The doctors performed an L-5 right laminectomy, L4-L5
discectomy, posterolateral fusion and a posterior iliac crest
bone graft.
6
Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir.1994),
cert. denied --- U.S. ----, 115 S. Ct. 1984, 131 L. Ed. 2d 871
(1995).
5
mind might accept to support a conclusion."7 It is "more than a
mere scintilla and less than a preponderance".8 Any findings of
fact by the Secretary which are supported by substantial evidence
are conclusive.9 In our review, we do not reweigh the evidence nor
do we substitute our judgment for that of the Secretary.10
A.
First, Ripley argues that the district court should have
remanded his case to the administrative level because of the new
evidence obtained from his second surgery. We agree. When new
evidence becomes available after the Secretary's decision and there
is a reasonable probability that the new evidence would change the
outcome of the decision, a remand is appropriate so that this new
evidence can be considered.11 To justify a remand, 42 U.S.C. §
405(g) requires that the evidence is "new" and "material" as well
as a showing of "good cause" for failing to provide this evidence
at the original proceedings.12 We review new evidence only to
determine if a remand is appropriate.13
7
Id. (citing Richardson v. Perales, 402 U.S. 389, 401, 91
S. Ct. 1420, 1427, 28 L. Ed. 2d 842 (1971)).
8
Spellman v. Shalala, 1 F.3d 357, 360 (5th Cir.1993).
9
42 U.S.C. § 405(g).
10
Id.; Haywood v. Sullivan, 888 F.2d 1463, 1466 (5th
Cir.1989).
11
42 U.S.C. § 405(g); Latham v. Shalala, 36 F.3d 482, 483
(5th Cir.1994).
12
See Pierre v. Sullivan, 884 F.2d 799, 803 (5th Cir.1989).
13
Haywood, 888 F.2d at 1471.
6
In this case, all parties have agreed that the evidence of
scarring from Ripley's initial surgery is new. This information
was not known until Ripley had his second back operation, after the
ALJ had made his decision.
Reviewing the materiality of new evidence requires us to make
two separate inquiries: (1) whether the evidence relates to the
time period for which the disability benefits were denied, and (2)
whether there is a reasonable probability that this new evidence
would change the outcome of the Secretary's decision.14 The new
evidence in this case meets both criteria.
The evidence of scar tissue obtained during the second
surgery relates to the period for which disability benefits are
sought. This tissue resulted from the initial surgery, in 1988,
and was not a condition which developed after the ALJ's decision.
Therefore, any consequences resulting from its presence are
material.
We also find that there is a reasonable probability that this
new evidence would have affected the outcome of the Secretary's
decision. In finding that Ripley was not disabled, the ALJ
rejected Ripley's subjective complaints of pain because of a lack
of objective medical testimony to substantiate his complaints. It
seems to us that the new evidence provides an objective basis for
14
Latham, 36 F.3d at 483; Haywood, 888 F.2d at 1471;
Bradley v. Bowen, 809 F.2d 1054, 1057-8 (5th Cir.1987). Evidence
is not material if it relates to a disability or to the
deterioration of a previously non-disabling condition resulting
after the period for which benefits are sought. Falco v.
Shalala, 27 F.3d 160, 164 (5th Cir.1994); Haywood, 888 F.2d at
1471.
7
Ripley's subjective complaints; on the basis of that evidence, the
ALJ could have found that Ripley was suffering from a disabling
condition. We conclude, therefore, that this new evidence is
material to the determination of Ripley's disability claim.
Finally, there is good cause for the failure to include this
evidence in the initial proceedings. Although evidence obtained
after the ALJ's decision does not automatically satisfy the good
cause requirement just because of its recent origin,15 Ripley had
a legitimate reason why this evidence was not produced earlier.
Major medical procedures such as back surgery are not entered into
lightly. Ripley's complaints of pain had to be examined and
evaluated to determine what medical treatment was best for Ripley.
Ripley could not just walk into the hospital and receive back
surgery on demand. Although back surgery had been suggested on two
occasions before the ALJ's decision, the ultimate judgment as to
whether back surgery was necessary and when it should be performed
rested with the treating physicians. In 1994, after the ALJ had
denied Ripley's disability claim, Ripley's doctor felt that the
surgery was necessary. Because the qualified judgment of Ripley's
doctors was responsible for the delay in the availability of
evidence relating to the scar tissue, we conclude that Ripley has
demonstrated good cause for failing to produce this evidence during
the initial hearings.
The new evidence in this case seems to meet all of the
criteria of 42 U.S.C. § 405(g). We reverse the district court's
15
Pierre, 884 F.2d at 803.
8
grant of summary judgment, and remand with directions that the case
be sent back to the administrative level for additional proceedings
to consider the new evidence. In addition, Ripley's subjective
complaints of pain should be reevaluated because there is a new,
objective basis that could support his statements.
B.
Ripley's next argument is that the ALJ used an improper legal
standard in reviewing his subjective complaints of pain. To prove
disability resulting from pain, an individual must establish a
medically determinable impairment that is capable of producing
disabling pain.16 Once a medical impairment is established, the
subjective complaints of pain must be considered along with the
medical evidence in determining the individual's work capacity.17
Ripley argues that he is entitled to a remand because the ALJ did
not follow this two-step process. We disagree.
The ALJ found that there was no medical impairment capable of
producing the alleged pain.18 Because the first inquiry was
answered in the negative, the ALJ was not required to proceed to
the second. Therefore, we conclude that Ripley has not established
16
56 Fed.Reg. 57928 (Nov. 14, 1991); 20 C.F.R. § 404.1529
(1994).
17
56 Fed.Reg. 57928; 20 C.F.R. § 404.1529.
18
The ALJ found that "[t]he claimant's allegations of pain
and other disabling symptoms are not substantiated by the medical
evidence to the extent alleged and are not sufficiently credible
to support a finding of disability". Record Vol. 2 at 30.
9
that the ALJ failed to apply the proper legal test.19
C.
Finally, Ripley argues that the ALJ failed to develop the
record fully and fairly when he concluded that Ripley was capable
of performing sedentary work, even though there was no medical
testimony supporting this conclusion. We agree with Ripley that
the ALJ's conclusion was not supported by substantial evidence.
The ALJ has a duty to develop the facts fully and fairly
relating to an applicant's claim for disability benefits.20 If the
ALJ does not satisfy his duty, his decision is not substantially
justified.21 Reversal of his decision, however, is appropriate only
if the applicant shows that he was prejudiced.22
Usually, the ALJ should request a medical source statement
describing the types of work that the applicant is still capable of
performing.23 The absence of such a statement, however, does not,
19
At this point, our review of the ALJ's findings is only to
determine if the ALJ followed the proper legal procedures. We
are not commenting on whether the findings are supported by
substantial evidence.
20
Pierre, 884 F.2d at 802; Kane v. Heckler, 731 F.2d 1216,
1219 (5th Cir.1984).
21
Kane, 731 F.2d at 1219.
22
Id. at 1220. Prejudice can be established by showing that
additional evidence would have been produced if the ALJ had fully
developed the record, and that the additional evidence might have
led to a different decision. Id.
23
The medical reports that are reviewed during the
administrative hearings should include "[a] statement about what
you can still do despite your impairment(s) based upon the
medical source's findings". 20 C.F.R. § 404.1513(b)(6) (1994).
10
in itself, make the record incomplete.24 In a situation such as the
present one, where no medical statement has been provided, our
inquiry focuses upon whether the decision of the ALJ is supported
by substantial evidence in the existing record.
The evidence that was available for review by the ALJ shows
a four year history of surgery, medical examinations, and
complaints of pain. From this evidence and Ripley's testimony at
trial, the ALJ concluded that Ripley was capable of performing
sedentary work.25 Based upon that finding, the ALJ applied the
Medical-Vocational Guidelines and concluded that Ripley was not
disabled.
The ALJ is responsible for determining an applicant's residual
functional capacity.26 After considering the evidence, however, we
conclude that the ALJ's determination that Ripley was capable of
performing sedentary work was not supported by substantial
evidence. The record includes a vast amount of medical evidence
establishing that Ripley has a problem with his back. What the
record does not clearly establish is the effect Ripley's condition
24
"Although we will request a medical source statement about
what you can still do despite your impairment(s), the lack of a
medical source statement will not make the report incomplete."
Id.
25
Sedentary work involves sitting for about six hours out of
an eight hour work day and occasionally lifting items weighing no
more than 10 pounds. Lawler v. Heckler, 761 F.2d 195, 197-8 (5th
Cir.1985). See also 20 C.F.R. § 404.1567(a) (1994). Having to
alternate between sitting and standing in order to work the
entire day does not fit within the definition of sedentary work.
Scott v. Shalala, 30 F.3d 33, 34 (5th Cir.1994).
26
20 C.F.R. § 404.1546 (1994).
11
had on his ability to work.27 The only evidence regarding Ripley's
ability to work came from Ripley's own testimony.28 Therefore, on
remand, we instruct the ALJ to obtain a report from a treating
physician regarding the effects of Ripley's back condition upon his
ability to work.29
III.
In sum, we REVERSE the grant of summary judgment and REMAND
this case to the district court with instructions that this case
should be sent back to the administrative level for additional
proceedings. In these additional proceedings, the new evidence
from Ripley's 1994 surgery should be considered, Ripley's
27
The Commissioner argues that the medical evidence
substantially supports the ALJ's conclusion. In making this
argument, the Commissioner points to reports discussing the
extent of Ripley's injuries. Without reports from qualified
medical experts, however, we cannot agree that the evidence
substantially supports the conclusion that Ripley was not
disabled because we are unable to determine the effects of
Ripley's conditions, no matter how "small", on his ability to
perform sedentary work.
28
Ripley testified that he was unable to sit or stand for
any length of time without experiencing a great deal of pain.
The ALJ concluded that Ripley was capable of sitting for six
hours of a work day because Ripley admitted that he went to
church, rode in a car for an hour and a half to attend the
hearing, and occasionally drove. Record, Volume 2 at 28 and 30.
What the ALJ failed to consider was Ripley's testimony regarding
limitations in performing these tasks. Ripley admitted that he
could not sit through an entire church service, that he had to
lie down in the back of a station wagon on the way to the
hearing, and that he would occasionally drive for short distances
only.
29
See 20 C.F.R. § 404.1527(c)(3) (1994) (requiring the
recontacting of the treating physicians to obtain additional
information regarding an applicant's ability to work when the
record is insufficient to make a determination of whether an
applicant is disabled).
12
subjective complaints of pain should be reevaluated, and a report
regarding the impact of Ripley's condition upon his ability to work
should be obtained from a treating physician and should be reviewed
before a determination of Ripley's eligibility for disability
benefits is determined.
13